FAQs

May Parents and School Districts Utilize the Mediation Process When the Parents are Seeking Tuition Reimbursement for a Parental Placement in a Private School? 

Yes. Under section 300.148 of Title 34 of the Code of Federal Regulations, if the parents believe the school district did not provide FAPE to the student and places the student in a private school, the parents may utilize due process procedures, including mediation, to seek tuition reimbursement from the school district for the private school placement. 

What is an Impartial Hearing and How Does it Differ from Mediation? 

While the goal of both special education mediation and impartial hearings is to resolve disputes relating to the identification, evaluation and/or educational placement of the student, or the provision of FAPE, there are important differences between these processes:

• An impartial hearing is a more formal process in which a hearing officer presides and provides all parties the opportunity to present witnesses and testimony. During the impartial hearing, unless the parents and school district otherwise agree and except for expedited impartial hearings relating to disciplinary procedures, the student remains in his or her current placement (i.e., “pendency” or “stay-put”). The impartial hearing officer (IHO) provides written findings of fact and decision based upon the evidence submitted by the parties. The decision is binding unless an appeal is requested to the Office of State Review. More information on impartial hearings can be found on the New York State Education Department’s (NYSED’s) Due Process Hearing website (www.nysed.gov/special-education/due-process-hearing). 

• Mediation is a less formal process which allows the parties to discuss the issues and work together with a neutral party facilitating the discussion. The mediator, unlike the IHO, does not issue a decision but rather assists the parties to reach a mutually agreeable resolution to the problem and document that agreement in writing. 

Can Mediation Be Requested Prior to a Request for An Impartial Hearing? 

Yes. Mediation can be requested at any time including for matters arising prior to or at the same time as an impartial hearing request. Use of mediation to resolve a dispute cannot be used to deny or delay a parent’s right to due process, such as the right to an impartial hearing. If an impartial hearing is requested during mediation and more time is needed for mediation, a request can be made to the IHO to reschedule the impartial hearing. If a mediation agreement is not reached prior to the required initiation date of the impartial hearing, or if the parties inform the IHO that one of the parties has withdrawn from the mediation process, the impartial hearing process must proceed. An IHO may grant specific extensions of time beyond the decision due date upon a determination that a settlement is likely through the mediation process. 

What is a Resolution Session and How Does the Process Differ from Mediation? 

When an impartial hearing is requested by the parents, the school district must first convene a meeting with the parents and the relevant member or members of the CSE at which the school district has the opportunity to resolve the complaint. This meeting is called a resolution session. A resolution session gives the parents and the school district a chance to work together to reach a mutually agreeable solution. The resolution session is coordinated by the school district. In both a resolution session and mediation, parents and the school district discuss the issues in dispute and have the opportunity to resolve the disagreement. In mediation, there will always be a trained neutral mediator present who is selected by the CDRC and who is experienced in conflict resolution and meeting facilitation. The mediator does not have a partiality to any party involved in the conflict; his/her role is to facilitate the discussion in order to assist the parties in negotiation. Although an agreement is ideal, the mediator does not influence either party in their decision-making process. Mediators assist the parties to develop and understand issues and options and negotiate in good faith. In mediation, conversations are confidential and cannot be used in any other proceeding as per federal and State special education regulations and in New York State (NYS) Judiciary Law Article 21-A. Both resolution session agreements and mediation agreements are binding and enforceable in court. Taking part in a mediation does not preclude either party from requesting a due process hearing. Additional information on the due process system can be found in the NYSED’s Procedural Safeguards Notice (www.nysed.gov/specialeducation/procedural-safeguards-notice-rights-parents-children-disabilities-ages-3-21). 

What happens if the School Would Like to Pursue Mediation but the Parents are Hesitant? 

Mediation is voluntary on both sides, as each party must be willing to attend a mediation session freely, in order to encourage discussion and collaboration. If the parents do not want to take part in the mediation process, the school district may ask the parents to take part in an informational session with a representative from the local CDRC who will encourage the use of mediation to resolve disagreements and explain the benefits of the process. If the parents choose not to participate in this meeting, the district may not deny or delay the parent’s right to an impartial hearing. 

Who Pays Mediation Costs? 

Special education mediation is provided at no cost to the parents and the school district. The costs of mediation are the responsibility of NYSED. Attorney fees incurred by the parents or the school district must be paid for by the respective party. The school district is responsible for arranging and paying for the cost for an interpreter if one is needed. 

Who Must Attend the Mediation Session? 

Both the parents and a representative of the school district attend the mediation session. The mediator will lead the mediation session and may discuss ground rules for participation. The main focus of the mediation process is to increase communication between the parties and find a workable solution, and to develop better ways to communicate in the future. The representative of the school district who attends the mediation session should be adequately informed and authorized by the school district to enter into an appropriate agreement on behalf of the school district. 

Can Other People Attend a Mediation Session and What Are Their Roles? 

State law and regulations do not address who may accompany a party at a mediation session. Either party may be accompanied by others or may consult with others before entering into a mediation agreement. Each party should enter the mediation process understanding and representing his or her rights and interests; however, there may be instances when a friend, family member, advocate or attorney is invited to provide advice and/or support. These invited individuals are, however, not the primary speakers at the mediation session and they are not the final decision makers. The parties represent themselves in discussions regardless of who accompanies them. The mediator will conduct the session with this in mind. At times, it may be appropriate for the student to attend a mediation session, particularly concerning transition services plans. This should be considered on a case by case basis, depending on the student’s ability to understand and participate. If an interpreter is needed, the parents may decide to bring a friend or family member. The CDRC may have an interpreter on staff, or may be able to arrange for an interpreter from the court system. An outside interpreter may be brought in at the district’s expense. The content of discussions held during a mediation session will remain confidential regardless of who attends. Prior to a mediation session, the CDRC mediator will ask each party who, if anyone, will be accompanying them to the session, and will then inform the other party who those people are. CDRC staff may explore with participants the roles that everyone will play. A mediator may feel it necessary to define this further at the start of a session, and decide with the parties how the accompanying people can best serve the conversation. 

What Happens if an Agreement is Reached, but One or Both Parties are Not Abiding by the Agreement? 

A written, signed mediation agreement is legally binding and enforceable in any State court of competent jurisdiction or in a district court of the United States. If one or both parties are not abiding by the agreement, either party may wish to consult an attorney for more information. In addition, if the mediation agreement resulted in a change to the student’s IEP, the parents could submit a written State complaint alleging that the IEP is not being implemented. For information on the State complaint process, go to the special education State Complaint webpage (www.nysed.gov/special-education/state-complaint).